January 24, 2019
On 15th January at the Royal Court of Justice, a one-day “Pre-Trial Review” was held in advance of the rolled-up hearing judicially reviewing the Airports National Policy Statement (NPS). The review addressed procedural issues such as requests for disclosure of government documents; the length and style of documents from all legal teams; and the timetable and logistics of the hearing scheduled to begin on 11thMarch.
AEF is acting as an expert witness for Friends of the Earth, which is challenging the NPS on the basis of its implications for climate change and for future generations. Other parties, including Plan B Earth, are also challenging the NPS in relation to climate change, and a group of local councils (and separately local resident Neil Spurrier) are challenging on a range of grounds including the local environmental impacts of the scheme.
Both Plan B and Friends of the Earth had made “disclosure applications” for consideration at the Pre-Trial Review, asking to see government documents relating to any specialist advice they had received about the implications of the Paris Agreement for the NPS. The Government’s lawyer clarified that the Government did have documents of this nature, but that, on its view of the law, it was not obliged by the Planning Act 2008 to assess the implications of the Paris Agreement for policies in the NPS, and therefore has not done so. It also agreed that it would not be making the argument that it would have made no difference to the NPS if the Government had made that assessment (an argument sometimes run by a losing party to persuade the Court not to order it to do anything).
This being the case, both Plan B and Friends of the Earth agreed that it was not necessary to actually see these documents, since the Government had accepted they existed and would be relevant on the Claimants’ view of the law. This part of the case will now stand or fall on legal interpretation of the Planning Act.
In the case to be heard in March, Friends of the Earth will argue that in developing the NPS, the Government failed to meet climate change requirements under the Planning Act, since it failed to explain how the NPS took account of the Climate Change Act. FoE will also advance arguments that the Government failed to meet wider duties on sustainability under the Planning Act by not taking account of emerging policy including in relation to the Paris Agreement.
Plan B will be making a closely related argument, but referring to a different section of the Planning Act in making the case that the Government has failed to take appropriate account of the Paris Agreement. The provisional plan is for both Plan B and Friends of the Earth’s challenges to be heard on the same day, with the Government’s response (to these and other challenges) being heard subsequently during the trial.
Plan B and Friends of the Earth have been making the case for livestreaming of the case, to enable as many people as possible to watch it without having to travel in person. This was discussed at the Pre-Trial Review. Since this would be essentially unprecedented, the judge (the Hon. Mr Justice Holgate) said it would need to be put to senior parties such as the President of Queens Bench. While livestreaming had been piloted in the Court of Appeal the results of this are outstanding. One issue to be considered is whether prohibitions on taking photographs and on taking audio recordings rule it out. A decision will be taken at least two weeks before the hearing.